Written by Masoud Mortazavi
“I’m a 34-year-old NBA center. I’m black. And I’m gay,” announced Jason Collins in a May 2013 interview with Sports Illustrated. Collins made history when he became the first active player to reveal his sexuality to the public, making him a modern day pioneer for LGBT athletes. On February 23, 2014, Collins initially signed a ten-game contract, which became a season-long contract with the Brooklyn Nets, making him the first openly gay player to sign with a team in the NBA and to play professionally. Although there are gay players who have revealed their sexual orientation after retirement, such as John Amaechi and Esera Tuaolo, Jason Collins is the first gay player to announce his sexual orientation while active. Two factors that influence gay athletes’ hesitation to disclose their sexual orientations are apparent: (1) the hyper-masculine culture of sports that is inhospitable to these players, and (2) the lack of knowledge about legal recourse available to gay athletes who face discrimination.
On the field, on the court, in the locker room, and in their personal lives, professional athletes are subjected to a standard of behavior that is rigidly defined by hyper-masculine stereotypes. These stereotypes are enforced and perpetuated through the behavior of players, the attitudes of fans and the complicity of team and league staff. The culture of professional sports is one of hyper-masculinity; male athletes are expected to be tough, be aggressive, be strong, be thick-skinned and womanize when off the field. This stereotype of what it means to be masculine falls in stark contrast with the stereotype of gay men common in sports culture, which portrays gay men as weaker athletes both physically and emotionally. These stereotypes, which are deeply entrenched within professional sports culture, create a perceived dichotomy in which a player cannot be both a successful athlete and a gay person.
Perhaps nowhere in sports is this notion more apparent than in the locker room. The culture of the sports locker room can chill a gay athlete’s disclosure of his sexual orientation that it is sometimes referred to as “the locker room closet.” Within this cultural microcosm, player interactions frequently cement the notion that being gay inherently decreases the value and talent of an athlete. From the regular and pejorative use of the word “faggot” to the importance placed on heterosexual encounters and many examples in between, the locker room is often a decidedly unfriendly place for a gay player. The locker room culture, within the already hostile sports culture, has specifically been cited as a barrier to gay athletes revealing their orientation to their teams and teammates. Furthermore, the preservation of the current locker room culture has been identified as a principal reason that professional sports team owners, staff and administration resist signing openly gay players to their organization fearing that a gay athlete would be disruptive to team cohesiveness.
Gay athletes often live in fear that revealing their sexuality could threaten their playing time and position on a team. It may surprise many to know that the four major sports leagues (NBA, NFL, MLB, and NHL) provide legal protections against sexual orientation discrimination in their Collective Bargaining Agreements. However, in spite of these protections, gay athletes often feel internal pressure from league administration, coaching staff, and other officials to keep their sexuality hidden to maintain their respective team’s existing chemistry and prevent drawing unwanted attention to the team. Since league protections are not enough to dispel the fear of retribution and discrimination facing gay athletes, these players must be made aware of additional legal protections available to them. This blog focuses on two possible legal avenues available to gay athletes in professional sports: Title VII of the Civil Rights Act of 1964 and New York State and City Human Rights Laws.
POSSIBILITY OF A GAY ATHLETE BRINGING A CLAIM UNDER TITLE VII
Title VII of the Civil Rights Act of 1964 was enacted as a protection against workplace discrimination because of such individual’s race, color, religion, sex, or national origin. A gay athlete claiming discrimination under Title VII would have difficulty establishing a claim because sexual orientation is not specifically delineated as a protected class. There is, however, a possible avenue available to gay athletes to sue under Title VII’s provision that prohibits discrimination because of “sex.” To state an actionable sex discrimination claim, a plaintiff must prove discrimination “because of” sex and not “because of” some other characteristic that is not protected by Title VII, such as sexual orientation. However, gay athletes can argue they faced discrimination because they did not conform to the masculine stereotype of the male sex required in sports culture (aggressive, tough, womanizing, etc.), thus making their claim sex-based.
In Price Waterhouse v. Hopkins, a plurality of the Supreme Court declared:
As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “in [enacting Title VII] Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”
Price Waterhouse anchored sex stereotyping in Title VII’s prohibition on discrimination “because of” sex. The widely accepted fallacy that an athlete “cannot be gay and masculine” is a major reason that gay athletes face discrimination. Under Price Waterhouse, gay athletes have protection against discrimination based on the fact that they do not adhere to the hyper-masculine sports stereotype.
GAY ATHLETES ARE PROTECTED UNDER NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW
Gay athletes are also protected from discrimination under some state employment laws, specifically New York State and New York City Human Rights Laws. New York State and City Human Rights Laws, unlike Title VII, expressly prohibit discrimination based on sexual orientation. All four major sports leagues are incorporated in New York State, and naming the league as a defendant allows a gay athlete to sue under New York law. Not all states provide such protections, and it is therefore important that gay athletes name their league as a defendant so that the suit may be brought under the more plaintiff-friendly New York laws.
New York State Human Rights Law (“NYSHRL”) section 296 (1)(a) and New York City Human Rights Law (“NYCHRL”) section 8-107 (a)(1) include sexual orientation as a protected class and have similar statutory language. Specifically, courts have interpreted NYCHRL as being most favorable to plaintiffs. Unlike NYSHRL, which requires a showing that the harassment was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment,” courts have determined that under NYCHRL a plaintiff must simply show that he was subjected to “unequal treatment” and that “questions of severity and frequency [be] reserved for consideration of damages.” The difference in the courts’ interpretation of the two statutes can be critical to the outcome of a discrimination claim made by a gay athlete. A gay athlete can, and should, sue under both NYSHRL and NYCHRL to increase his likelihood of success, but is most likely to prevail based on NYCHRL.
In Williams v. New York City Housing Authority, the court interpreted NYCHRL as a more effective deterrent to workplace discrimination than NYSHRL. The court in Williams noted that the traditional “severe or pervasive” test prior courts used to analyze discrimination claims under NYSHRL “reduces the incentive for employers to create workplaces that have zero tolerance for conduct demeaning to a worker because of protected class status” because it sets a higher burden of proof for the plaintiff. Under the ruling in Williams, all harassing conduct based on protected class status is actionable under NYCHRL except for conduct that a “reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences.’” By further contrast to NYSHRL, the court stated that the burden is on the employer, not the employee, to show that the conduct at issue was no more than a “petty slight” or “trivial inconvenience.”
To establish a claim of hostile work environment under NYCHRL, a “plaintiff must show that (1) he belongs to a protected group; (2) he was subjected to unwelcome sexual harassment; and (3) the harassment complained of was based upon his protected status.” A gay athlete can satisfy the first element by simply stating that he is gay. The second element will be based on factual circumstances surrounding the athlete’s claim. A gay athlete could cite locker room conduct, language used by teammates, coaches, team staff, and league employees, name-calling, violence, discrepancies in playing time, and other discriminatory conduct to show he was subject to unwelcome harassment. Finally, presenting evidence of slurs such as “faggot” or “homo” could satisfy the third element of a gay athlete’s claim, as this pejorative and abusive language would likely be considered more than “petty slights and trivial inconveniences.”
CONCLUSION
The unique struggles of LGBT athletes in the professional sports world have been making headlines like never before. Jason Collins’ announcement, the fact that Michael Sam, a linebacker from the University of Missouri, has become the first openly gay player to play in the NFL, anti-discrimination initiatives like the You Can Play campaign and other factors have all contributed to an increased awareness of the role of gay athletes in sports and the fear, maltreatment and isolation they face on a daily basis. If the locker room closet can be eliminated, both through a shift in perceptions and an increased public awareness of gay athletes’ rights, sports culture will be freed of the elements that strip gay athletes of the freedom to reveal their orientation and deny them the right to play the game they love free of fear.